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Supreme Court Rules Some Kids Must Restart Immigration Process At Age 21

Monday, June 09, 2014

Digging into the nitty gritty of immigration law, the Supreme Court ruled Monday that some immigrant children who turn 21 while their parents' immigration application is still pending have to go to the back of the line and start over.

The Associated Press explains:

"The justices on Monday sided with the Obama administration in ruling that immigration laws do not let children who age out of the system qualify for visas.

"The case involved Rosalina Cuellar de Osorio, a Salvadoran immigrant who was in line for a visa along with her 13-year-old son. But after years of waiting, her son turned 21 and government officials said he no longer qualified as an eligible child. He was placed at the back of the line, resulting in a wait of several more years."

The case also resulted in a rare shuffle for the court as parts of the liberal wing and the conservative wing united at both ends of the spectrum. Here's how SCOTUSBlog boiled it down:

"It is an unusual majority — Kagan's opinion is joined by Kennedy and Ginsburg. Roberts and Scalia reach the same result in a separate opinion by Roberts. Alito dissents. Sotomayor dissents joined by Breyer and Thomas (except for one footnote)."

The actual argument is really about the text of the Child Status Protection Act. Here's how Justice Sonia Sotomayor set up the argument in her dissent:

"Although the workings of our Nation's immigration system are often complex, the narrow question of statutory interpretation at the heart of this case is straightforward. Which aged-out children are entitled to retain their priority dates: derivative beneficiaries of visa petitions in all five family-preference categories, or derivative beneficiaries of petitions in only one category? The initial clause of 8 U.S.C. §1153(h)(3) provides a clear answer: Aged-out children may retain their priority dates so long as they meet a single condition—they must be 'determined ... to be 21 years of age or older for purposes of' derivative beneficiary status. Because all five categories of aged-out children satisfy this condition, all are entitled to relief."

Obviously, Sotomayor's thinking did not prevail. The rest of the court found that the Child Status Protection Act applies only to a subset of aged-out kids.

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